B-226669, MAY 6, 1987, OFFICE OF GENERAL COUNCIL

B-226669, MAY 6, 1987, OFFICE OF GENERAL COUNCIL

CIVILIAN PERSONNEL - LEAVES OF ABSENCE - ANNUAL LEAVE - COMPUTATION ERRORS - ERROR CORRECTION - UNUSED LEAVE BALANCE DIGEST: EMPLOYEE HAD A 360-HOUR LEAVE CEILING AT THE TIME IT WAS DETERMINED THAT HIS SERVICE COMPUTATION DATE HAD BEEN IMPROPERLY ESTABLISHED TO GIVE HIM CREDIT FOR TIME IN A RESERVE STATUS. THE CORRECTION OF HIS ANNUAL LEAVE ACCOUNT TO RECOVER THE EXCESS ANNUAL LEAVE CREDIT THE EMPLOYEE RECEIVED AS A RESULT OF THAT ERROR REDUCED HIS LEAVE ACCOUNT BALANCE TO 164 HOURS. SINCE THE CORRECTION OF HIS ANNUAL LEAVE ACCOUNT RESULTED IN A POSITIVE LEAVE BALANCE, THE EMPLOYEE IS NOT INDEBTED TO THE GOVERNMENT AS A RESULT OF THE EXCESS LEAVE CREDITS AND THE RECOUPMENT OF THOSE CREDITS, THEREFORE, IS NOT SUBJECT TO WAIVER UNDER 5 U.S.C. SECS. 5585. CONSISTENT WITH 37 COMP.GEN. 213 (1957), THE RECONSTRUCTION OF HIS LEAVE ACCOUNT REDUCES HIS SPECIAL LEAVE CEILING OF 360 HOURS TO THE 240-HOUR CEILING AUTHORITY BY 5 U.S.C. SECS 6304(A) FOR MOST EMPLOYEES.

THE HONORABLE ELTON GALLEGLY:

THIS IS IN REFERENCE TO YOUR LETTER OF MARCH 1, 1987, IN WHICH YOU ASK THAT THE GENERAL ACCOUNTING OFFICE ADDRESS ISSUES RAISED IN CORRESPONDENCE RECEIVED FROM YOUR CONSTITUENT, MR. RONALD J. KAY. MR. KAY, AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, IS CONCERNED WITH THE MANNER IN WHICH HIS ANNUAL LEAVE ACCOUNT HAS BEEN ADJUSTED TO RECOVER 196 HOURS ERRONEOUSLY CREDITED TO THAT ACCOUNT.

MR. KAY EXPLAINS THAT WHEN HE WAS FIRST HIRED AS A CIVILIAN EMPLOYEE OF THE FEDERAL GOVERNMENT, A PERSONNEL OFFICER FOR THE DEPARTMENT OF THE AIR FORCE ESTABLISHED APRIL 14, 1957, AS HIS SERVICE COMPUTATION DATE BASED ON 23 1/2 MONTHS OF ACTIVE MILITARY DUTY PLUS 4 1/2 YEARS IN A RESERVE STATUS. IN 1979, MR. KAY WAS ADVISED THAT ONLY "ACTIVE" MILITARY SERVICE COULD BE CREDITED FOR THE PURPOSE OF ESTABLISHING HIS SERVICE COMPUTATION DATE AND THAT HE IMPROPERLY HAD BEEN GIVEN CREDIT FOR THE FULL PERIOD OF TIME HE SPENT IN A RESERVE STATUS PRIOR TO HIS APPOINTMENT. AT THAT TIME HIS SERVICE COMPUTATION DATE WAS CORRECTED TO MAY 1, 1961.

THE RATE AT WHICH AN EMPLOYEE ACCRUES ANNUAL LEAVE INCREASES BASED ON THE NUMBER OF YEARS OF SERVICE TO HIS CREDIT. AFTER 3 YEARS OF SERVICE, AN EMPLOYEE EARNS 6 RATHER THAN 4 HOURS OF ANNUAL LEAVE PER PAY PERIOD; AFTER 15 YEARS OF SERVICE, AN EMPLOYEE ACCRUES ANNUAL LEAVE AT THE RATE OF 8 HOURS PER PAY PERIOD. 5 U.S.C. SECS. 6301 (1982). THE ERROR IN ESTABLISHING MR. KAY'S SERVICE COMPUTATION DATE HAD THE EFFECT OF ERRONEOUSLY INCREASING HIS YEARS OF SERVICE AND THUS THE NAVY'S RECOMPUTATION OF MR. KAY'S ANNUAL LEAVE ACCOUNT BASED ON HIS CORRECT SERVICE COMPUTATION DATE RESULTED IN A DETERMINATION THAT HE HAD BEEN IMPROPERLY CREDITED WITH 196 HOURS OF LEAVE. THE CONSEQUENT ADJUSTMENT TO HIS LEAVE ACCOUNT REDUCED HIS ANNUAL LEAVE BALANCE FROM 360 HOURS TO 164 HOURS.

BECAUSE THE ERROR IN ESTABLISHING HIS SERVICE COMPUTATION DATE RESULTED THROUGH NO FAULT OF HIS OWN, MR. KAY FEELS THAT IT IS INAPPROPRIATE FOR THE NAVY TO CORRECT THAT ERROR BY ADJUSTING HIS LEAVE ACCOUNT. IN THIS REGARD, HE REFERS TO THE AUTHORITY OF PUBLIC LAW NO. 90-616 UNDER WHICH CERTAIN DEBTS OWED BY EMPLOYEES TO THE GOVERNMENT MAY BE WAIVED. THIS MATTER WAS FIRST RAISED WITH OUR CLAIMS GROUP IN 1980 WHEN MR. KAY SUBMITTED A CLAIM FOR RESTORATION OF THE 196 HOURS OF LEAVE WHICH HAD BEEN DEDUCTED FROM HIS ANNUAL LEAVE BALANCE. BY SETTLEMENT CERTIFICATE NO. Z- 2827447, DATED JULY 15, 1980, OUR CLAIMS GROUP DENIED MR. KAY'S REQUEST, CITING THE ABSENCE OF ANY AUTHORITY EITHER TO RESTORE THE LEAVE IN QUESTION OR TO PERMIT HIM TO RETAIN HIS 360-HOUR SPECIAL LEAVE CEILING.

WHERE IT IS DISCOVERED THAT AN EMPLOYEE HAD HAD LEAVE ERRONEOUSLY CREDITED TO HIS ACCOUNT, WE HAVE REQUIRED THE LEAVE ACCOUNT TO BE RECONSTRUCTED FOR EACH YEAR INVOLVED TO ARRIVE AT A PROPER CURRENT BALANCE. THE PROPER LEAVE CREDIT IS ADDED TO THE CORRECT BALANCE AT THE BEGINNING OF EACH SUCH YEAR AND THE TOTAL LEAVE USED BY THE EMPLOYEE DURING THAT YEAR IS SUBTRACTED. IF THE EMPLOYEE HAS SUFFICIENT LEAVE TO COVER LEAVE TAKEN EVEN AFTER THE ADJUSTMENT AND THE RECONSTRUCTED ACCOUNT RESULTS IN A POSITIVE BALANCE AT THE END OF THE YEAR, THE ERROR IS CORRECTED MERELY BY REDUCING THE EMPLOYEE'S LEAVE BALANCE. B-171092, DECEMBER 1, 1970; B-169297, NOVEMBER 9, 1970, COPIES ENCLOSED. IN MR. KAY'S CASE, IT APPEARS THAT HIS CORRECTED LEAVE BALANCE DURING EACH OF THE YEARS INVOLVED WAS SUFFICIENT TO COVER THE LEAVE HE IN FACT TOOK. THUS THE ERROR WAS CORRECTED BY REDUCING THE BALANCE IN HIS ANNUAL LEAVE ACCOUNT. THIS PROCEDURE IS CONSISTENT WITH THE ABOVE-CITED DECISIONS.

WE BELIEVE MR. KAY'S REFERENCE TO PUBLIC LAW NO. 90-616 WARRANTS A FURTHER EXPLANATION OF THE STATUTORY AUTHORITY UNDER WHICH AN EMPLOYEE'S INDEBTEDNESS TO THE UNITED STATES MAY BE WAIVED. AS AMENDED IN 1985 AND CODIFIED AT 5 U.S.C. SECS. 5584 (SUPP. III, 1985), THAT STATUTE PROVIDES AUTHORITY BY WHICH THE COMPTROLLER GENERAL OR AN AGENCY HEAD MAY WAIVE:

"(A) A CLAIM OF THE UNITED STATES AGAINST A PERSON ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY OR ALLOWANCES MADE ON OR AFTER JULY 1, 1960, OR ARISING OUT OF AN ERRONEOUS PAYMENT OF TRAVEL, TRANSPORTATION OR RELOCATION EXPENSES AND ALLOWANCES TO AN EMPLOYEE OF AN AGENCY, THE COLLECTION OF WHICH WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES. ***"

INSOFAR AS IT PERTAINS TO MR. KAY'S CASE, THIS STATUTE ONLY PROVIDES A BASIS TO WAIVE AN INDIVIDUAL'S INDEBTEDNESS TO THE UNITED STATES IF IT ARISES OUT OF AN ERRONEOUS "PAYMENT OF PAY." AS DEFINED IN THE IMPLEMENTING REGULATIONS, THE STATUTORY PHRASE "PAYMENT OF PAY" MEANS PAYMENT OF SUCH THINGS AS SALARY, WAGES, PAY OR COMPENSATION AND INCLUDES "PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE." 4 C.F.R. SECS. 91.2(B) (1985). THE REGULATORY REFERENCE TO PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE REFERS TO THE LUMP-SUM PAYMENT MADE UNDER 5 U.S.C. SECS. 5551 (1982) TO LIQUIDATE THE OUTSTANDING BALANCE IN THE ANNUAL LEAVE ACCOUNT OF AN EMPLOYEE AT THE TIME OF HIS SEPARATION FROM GOVERNMENT SERVICE. AN ACTUAL OVERPAYMENT OF THE AMOUNT NECESSARY TO LIQUIDATE THE EMPLOYEE'S PROPER LEAVE BALANCE IS THUS SUBJECT TO WAIVER. AN ACTUAL PAYMENT OF THIS NATURE IS TO BE DISTINGUISHED FROM AN OVERCREDIT TO AN INDIVIDUAL'S LEAVE ACCOUNT WHICH CAN BE CORRECTED MERELY BY ADJUSTING HIS LEAVE BALANCE.

WHERE CORRECTION OF THE EMPLOYEE'S LEAVE ACCOUNT RESULTS IN A POSITIVE LEAVE BALANCE, WE HAVE HELD THAT THERE HAS BEEN NO OVERPAYMENT OF PAY. HAVE RECOGNIZED, HOWEVER, THAT AN OVERPAYMENT OCCURS WHERE RECONSTRUCTION OF THE INDIVIDUAL'S LEAVE RECORD SHOWS THAT HE HAS USED LEAVE IN EXCESS OF THAT TO WHICH HE IS ENTITLED. THOMAS C. JAMES, B-211881, DECEMBER 9, 1983, COPY ENCLOSED. IN THAT EVENT, THE INDIVIDUAL HAS BEEN PAID FOR LEAVE TO WHICH HE IS NOT ENTITLED. HE HAS RECEIVED PAY IN EXCESS OF THAT TO WHICH HE IS ENTITLED AND IS INDEBTED TO THE GOVERNMENT TO THE EXTENT OF THE OVERPAYMENT. AS IN THE CASE OF AN OVERPAYMENT FOR ACCUMULATED AND ACCRUED LEAVE, HE HAS RECEIVED AN OVERPAYMENT OF PAY RESULTING IN AN INDEBTEDNESS THAT MAY BE CONSIDERED FOR WAIVER UNDER 5 U.S.C. SECS. 5584. THUS, MR. KAY IS CORRECT IN HIS OBSERVATION THAT THE EXCESS LEAVE CREDITED TO HIS ACCOUNT COULD BE CONSIDERED FOR POSSIBLE WAIVER IF HE HAD USED RATHER THAN ACCUMULATED IT IN HIS LEAVE ACCOUNT.

IN MR. KAY'S CASE, THE CORRECTION OF HIS ANNUAL LEAVE ACCOUNT HAD THE ANCILLARY EFFECT OF REDUCING HIS SPECIAL 360-HOUR CEILING TO THE 240-HOUR CEILING APPLICABLE TO MOST EMPLOYEES UNDER 5 U.S.C. SECS.6304(A) (1982). THE LEAVE CEILING IS THE MAXIMUM AMOUNT OF ANNUAL LEAVE AN EMPLOYEE MAY CARRY OVER IN HIS LEAVE ACCOUNT FROM YEAR TO YEAR. BY SPECIAL AUTHORITY CONTAINED IN 5 U.S.C. SECS. 6304(B) (1982), CERTAIN EMPLOYEES STATIONED OVERSEAS MAY ACCUMULATE AS MUCH AS 360 HOURS OF LEAVE TO BE CARRIED OVER FROM YEAR TO YEAR. AN EMPLOYEE WHO ONCE HAS BECOME SUBJECT TO THIS SPECIAL PROVISION MAY RETAIN HIS SPECIAL LEAVE CEILING EVEN AFTER HIS OVERSEAS ASSIGNMENT IS TERMINATED, PROVIDED HE DOES NOT IN ANY ONE YEAR USE MORE ANNUAL LEAVE THAN HE EARNS. 5 U.S.C. SECS. 6304(C) (1982). WHERE HE USES MORE LEAVE THAN HE EARNS, THE BALANCE CARRIED FORWARD INTO THE NEW LEAVE YEAR BECOMES HIS NEW LEAVE CEILING UNTIL HIS LEAVE ACCOUNT IS REDUCED TO 240 HOURS OR LESS. AT THAT POINT, HIS LEAVE CEILING BECOMES THE 240 HOURS AUTHORIZED FOR ALL EMPLOYEES. FEDERAL PERSONNEL MANUAL, CHAPTER 630, SUBCHAPTER 3-5D.

IN CASES WHERE THE CORRECTION OF AN EMPLOYEE'S LEAVE ACCOUNT REDUCES THAT ACCOUNT TO A BALANCE WHICH IS LESS THAN THE INDIVIDUAL'S SPECIAL LEAVE CEILING, WE HAVE HELD THAT THE LEAVE CEILING IS ALSO REDUCED. WE ARE ENCLOSING A COPY OF OUR DECISION 37 COMP.GEN. 213 (1957) WHICH INVOLVED CIRCUMSTANCES SIMILAR TO MR. KAY'S IN THAT HE EMPLOYEE IMPROPERLY HAD BEEN GIVEN CREDIT FOR SERVICE THAT WAS NOT IN FACT CREDITABLE IN ESTABLISHING HIS SERVICE COMPUTATION DATE. AT THE TIME THE ERROR WAS DISCOVERED, THE EMPLOYEE HAD A SPECIAL LEAVE CEILING OF 480 HOURS. WHEN HIS LEAVE ACCOUNT WAS CORRECTED, THE EMPLOYEE'S LEAVE BALANCE WAS REDUCED TO 366 HOURS. NOTING THAT THE USE OF LEAVE IN EXCESS OF THE AGGREGATE AMOUNT WHICH AN EMPLOYEE ACCRUES DURING ANY LEAVE YEAR AUTOMATICALLY REDUCES THE INDIVIDUAL'S LEAVE CEILING, WE HELD THAT THE EMPLOYEE'S NEW LEAVE CEILING WAS 366 HOURS. THIS DECISION IS CONSISTENT WITH OUR MORE RECENT HOLDING IN WHICH AN EMPLOYEE WITH A SPECIAL 360-HOUR LEAVE CEILING WAS ERRONEOUSLY ADVISED BY AGENCY OFFICIALS THAT HE HAD 15 HOURS OF LEAVE TO USE IN ORDER TO AVOID A FORFEITURE OF ANNUAL LEAVE IN EXCESS OF HIS LEAVE CEILING AT THE END OF THE LEAVE YEAR. NOTWITHSTANDING THAT HE TOOK 15 HOURS OF LEAVE IN RELIANCE ON THE ERRONEOUS ADVICE OF A GOVERNMENT OFFICIAL, WE HELD THAT HIS SPECIAL LEAVE CEILING WAS REDUCED FROM 360 TO 345 HOURS. BOB R. CARSON, B-196834, JULY 15, 1980.

WE HAVE REVIEWED OUR CLAIMS GROUP'S DETERMINATION IN MR. KAY'S CASE AND FIND THAT IT IS FULLY IN ACCORD WITH THE DECISIONS OF THIS OFFICE WHICH ARE DISCUSSED ABOVE. WE HOPE THIS LETTER WILL HELP TO CLARIFY THE HOLDINGS IN THOSE DECISIONS AND THEIR APPLICABILITY TO MR. KAY'S PARTICULAR CASE. THE DOCUMENTS FORWARDED WITH YOUR LETTER ARE RETURNED AS YOU REQUESTED.